If you held the winning card in a life or death game — would you play it if you knew it also came with a price that would leave you, your family and all your relations destitute for possibly generations to come? And knowing that the price of not playing it would leave you, your family and all your relations without food, water or a safe place to live for even longer? Rock, meet hard place.
That’s the dilemma we see many Indigenous nations face regularly when deciding to take the step of facing down Crown governments in court based on their Constitutionally-guaranteed rights (section 35 of the Constitution Act, 1982) in order to protect their land, rights and way of life. It’s one thing to have the Constitution card in your pocket; it’s another thing to be able to play it in a Canadian court when up against the deep resources of the federal or a provincial government or both. Particularly when Crown governments have tended to use strategies of delay and outspend as a way to manage this challenge to their support for extractive industries like oil or mining.
As the executive director of RAVEN (Respecting Aboriginal Values & Environmental Needs), a charitable non-profit organization that raises legal defence funds to assist Indigenous peoples to defend their constitutionally protected rights, I have witnessed first-hand the struggle that they often have in accessing justice through our courts. It’s not an easy decision for Nations to go to court. There is a significant imbalance of power in the resources between the parties, and familiarity with the system itself. But sometimes the Nation’s hand is forced, by destruction of their land, water, medicines, and animals for state-sanctioned industrial expansion that tramples their Aboriginal and treaty rights into dust.
Case in point — Beaver Lake Cree Nation in Alberta filed a legal action in 2008 against the governments of Canada and Alberta over the constitutional standing of numerous oilsands projects — one of the world’s largest and most carbon-intensive energy developments. The high-stakes action represents a precedent to the Canadian court. The Beaver Lake Cree case will be the first time a court is asked to draw the line defining too much industrial development in the face of constitutionally-protected treaty rights.
